[Part 2 of 5 / Table of Contents]

What should you do?

Unfortunately there is not a defined set of exact guidelines to ensure compliance. The main reason is that the Department for Culture, Media and Sport who are responsible for drafting the exact steps that businesses should follow have not finished these.

However a series of industry bodies and organizations including the IPA and more importantly the Information Commissioner’s Office (ICO), have issued initial recommendations to ensure organizations are prepared. This document serves to outline key considerations as well as recommend a set of initial actions to ensure readiness once specific guidelines have been defined.

Our view on the UK cookie legislation

The legislation will not stop users receiving online ads. More importantly, the legislation does not forbid the use of cookies that are not considered “strictly necessary” – it simply requires organizations gain consent by giving the user specific information about what they are agreeing to and providing them with a way to show their acceptance. In most cases consumers will be happy to allow you to track them if it makes their experience more enjoyable and useful.

When considering the requirement to obtain consent it is important to note:

1. Organizations are required to provide information about cookies and obtain consent before a cookie is set for the first time. Provided you get consent at that point you do not need to do so again for the same person each time you use the same cookie (for the same purpose) in the future. {4}
2. The use of cookies for “functional purposes” including remembering previous settings or collecting information about how users’ access and use a site (e.g. analytics cookies) at the present time still require consent. Possible ways of obtaining consent for these functional cookies is discussed in the next section of this document.
3. Organizations using cookies provided by a third party in their sites (placing pixels from media publishers such as Specific Media on their sites) may need to make users aware of this and point them to information on how the third party might use cookies and similar technologies so that the user is able to make an informed choice. This is by far the most challenging area in which to achieve compliance and have yet to be defined. {5}

The legislation in its current form and wording highlights challenges that will require further interpretation and clarification including:

• The definition of “user consent” based on their access device. In many cases a device is utilized by multiple users (e.g. home computer accessed by a family of three). Cookies are set at the device level as opposed to the individual user level. For example, if three people access an organizations’ site via the same device and browser it would require each user to be indentified individually.

• The legislation does not explicitly define the consent requirement relative to an “opt-in” or “opt-out”. The current interpretation leads to the “opt-in” option which is an important consideration.

• The definition of cookies serving “functional purposes” requires further validation in the context of Digital Marketing. The use of cookies for analytics and site optimization do serve a functional purpose in the fact they improve the user experience. However, their classification is yet to be completely defined.

• Larger third party organizations such as Google and Microsoft could gain higher acceptance due to their brand recognition as opposed to their specific privacy policies. If Google’s cookies used for their search engine, checkout service, analytics and advertising network gain wide acceptance over other providers, it could establish a monopoly of cookie data in the future.

• The legislation will accelerate the adoption of the ‘Advertising Option Icon’ (being developed by the Internet Advertising Bureau Europe, the World Federation of Advertisers, the European Advertising Standards Alliance, the Direct Marketing Association and the Incorporated Society for British Advertisers) which will be shown on or near behavioural advertising and will provide consumers with further information about behavioural advertising in the relevant European language when clicked.

The users will also be able to manage information preferences or stop receiving behavioral advertising via a new pan-European website.

[Click here for Part 3 of 'The future use of cookies in the UK: From informing to obtaining consent']

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• Background
• What is the role of cookies?
• What is the new legislation on cookies in the UK?
• When is the legislation on cookies coming into effect?
• What should you do?
• Our view on the UK cookie legislation
• The different forms for obtaining consent
• Recommended next steps
• How we can help
• References & Sources

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About Alain Portmann

My job is simple. To inspire staff, clients and consumers.

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